FAA NEEDS A COMMISSION

Comment: -- Within two or three months of going to work at the FAA in late October 1967, I realized what the major problem was in its structure: it needed a commission. For two reasons: (1) the bureaucrats were running around making rules which had enormous impact on aviation, and were the equivalent of laws any state legislature would formally adopt only after committee hearings; (2) there was no organization within the agency that one could send complaints and ideas to that would pay any attention to them. I can remember one of the senior lawyers in the Office of General Counsel walking through the bays and making derogatory remarks about some letter from a congressman that raised a legitimate complaint he'd received from an airman.

As it stands, the only thing that will stop the FAA, or slow it down, from promulgating a controversial rule is if AOPA, and/or ALPA, generates thousands of letters opposing the idea, after giving it publicity in their monthly magazines, or by special notices.

If some pilot should write the Administrator, or have his congressman do so, with a legitimate gripe, it will wind up with the lawyers for an answer, and they are experts at drafting letters that never really say anything, but sound like they are saying something, and have answered to complaint.

What a commission would bring to the FAA, besides its law making ability after thorough inputs from the aviation public by letters and hearings, is a body that would take complaints seriously, have them investigated thoroughly, then make an independent judgment on the issue or idea presented..

Senator Robert Byrd, in the late 1980s, pushed through a bill to create a President's Aviation Safety Commission, the so-called Albertine Commission. I sent to it much of my material. And was thanked for it by one of Dr. Albertine's aides. I stressed to him the need for the FAA to have a commission. Their final report recommended the agency have a board of governors and that it look into enforcement policies. Unfortunately, like so many commissions, its report wasn't heard from again. The commission was underfunded with a life of only one year. Not nearly enough.

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Lawyer-Pilots Bar Association Journal -- Fall 1994

OPINION FROM A MEMBER

Lawrence B. Smith

Missing from the growing movement to return the FAA to independent status is recognition of the agency's core problem. It needs a regulatory commission.

Many FAA regulations are of such broad reach they are equivalent to laws enacted by a state legislature and should not be promulgated by unelected bureaucrats. In other complex regulatory areas, Congress solved this problem by creating quasi-legislative commissions like ICC, FTC, SEC, and FCC. Their purpose is to provide an extension of the democratic process to rulemaking through an arena where the free exchange of ideas can be distilled into law, as opposed to anointing an administrative Czar to do so.

The CAB, arising from the 1938 Civil Aeronautics Act, was intended to achieve this. It had a dual role, however, and gave greater attention to economic regulation of air carriers than air safety rules. This problem was highlighted by the 1956 Grand Canyon mid-air between UAL and TWA, followed closely by collisions between military jet fighters and airliners. These tragedies firmed up the idea for 1958's independent Federal Aviation Agency with its all-powerful Administrator.

The burden of the DOT bureaucracy stacked on top of the FAA's is a legitimate concern. Another key problem, however, is how rules that affect airmen and aviation are made. Far too often they are shaped not by what the industry and public wants or needs but by internal bureaucratic pressures, even bias of a single individual. Although FAA officials profess receptiveness to outside ideas ("just write us a letter"), more often than not they let them die. Bureaucratic resistance to change and lethargy are realities.

Competing ideas are best masticated through some sort of democratic process that guarantees each idea its equal place on an agency's agenda: a regulatory body guarantees there will be an agenda. The sympathetic ear of just one member is all it takes to put it there and get the issue out in the open.

The President's Aviation Safety Commission, cobbled together at the instance of then Senate Majority Leader Robert Byrd with too little money or time, recommended to Congress in 1988 that FAA have a board of governors. (My memo to them may have helped prompt this.) Like so many reports from advisory commissions . . .

What kind of issues would a Federal Aviation Commission resolve? In the fifty years since I soloed, nothing comes close to the Bob Hoover matter. Exposing the arrogant and untrammeled power exercised by the FAA bureaucracy, and the impotence of the Administrator when faced with doing what is right because of the fear of challenging his own officials, this episode has put the agency in disrepute beyond measure. The antipathy towards it by those it regulates is unhealthy in the extreme.

A commission could promulgate a very simple rule that not only would prevent this from occurring again, but likely give Bob back his U.S. medical certificate. It would provide that when FAA medical bureaucrats challenge the judgment of an airman's flight surgeon the matter be resolved by an independent panel of three doctors board certified in the relevant specialty.

FAA's effort to radically revamp medical certification rules runs a close second to Hoover. It's almost as if the agency is thumbing its nose at aviators because they have been so bitter about the treatment of Bob. Such drastic changes should be aired in front of and determined by a commission.

With the incredible advances in cardiology, the age-60 rule should have long ago been changed to 63 or 65. This kind of issue is ideally suited for a commission, not lawsuits or congressional hearings.

In my area of interest, a commission could investigate why the vast majority of safety violations, most inadvertent and first offenses, are penalized by license suspension rather than a money fine; as well as find out why neither statute nor rule mentions such a penalty.

Having worked in the Office of General Counsel (now "Chief") many years ago, I saw how, first hand, if you give the power to regulate to a bunch of bureaucrats, when they run out of things to do, they'll look for new rules to make. Which is why so many citizens today hold the view the federal government is the enemy.

The FAA does have an important difference, however, from SEC, FCC and such. It administers things, for instance, ATC, navigation aids, research. For these activities a commission could act as a board of directors and exercise oversight, or at minimum be an informal advisory panel.

Iowa Representative Jim Lightfoot's bill to make the FAA independent recognizes this by establishing a management advisory board. Lightfoot deals with the problem of continuity by providing a seven-year term for the Administrator. Continuity would be better provided by a regulatory commission with its separate staff.

Continuity is indeed critical. GAO official Edward M. Morahan in 1979 authored a report that studied FAA follow-through on hazards identification projects: flammability of upholstery, practicality of using jellied jet fuel, for instance. He found that, usually instigated by Administrator or public pressure, they would be quite active for, say, two years, then quietly peter off and die. Obvious reason: lack of someone to hold FAA officials' feet to the fire.

This problem is still with us. The Washington Post National Weekly Edition, April 24-30, 1995, titled an article about FAA development of a taxi/runway warning system: "How a Safety System Got Fogged In," with the subtitle, "While the FAA dithered, passengers have died in runway collisions." Deja vu all over again!

An aviation subcommittee chairman's first reaction to this will be to protect his own turf. The reality, however, is that an FAA regulatory commission would take a great load off Congress by organizing and narrowing down problems to those warranting legislation.  And deal with problems Congress has no time to. It could also act at the request of Congress to study matters legislators thought important.

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